Preview | Livestock Database License Agreement |

This LIVESTOCK DATABASE LICENSE AGREEMENT (Agreement) is entered into as of this 28^thday of February, 2002 (the Effective Date) by and between PE CORPORATION (NY), a New York corporation, through the Celera Genomics Group (Celera), having a place of business at 45 West Gude Drive, Rockville, Maryland 20850 and METAMORPHIX, INC., a Delaware corporation (MMI), having a principal place of business at 1450 South Rolling Road, Baltimore, Maryland 21227.

WHEREAS, Celera has an online information system to organize, analyze and deliver medically relevant biological information for research and discovery and a marketing and sales infrastructure to promote and license biological information; and

WHEREAS, Celera has expended and will continue to expend significant resources and efforts to develop a variety of genomic databases, related biological information and analysis resources;

WHEREAS, Celera has sequenced and assembled bovine, porcine and poultry genome sequence and identified certain SNPs for these genomes;

WHEREAS, MMI desires, subject to the terms and conditions of this Agreement, to obtain access to certain genomic databases, and the right to use certain software tools for the analysis of such databases;

WHEREAS, Celera is willing, subject to the terms and conditions of this Agreement, to grant MMI access to such databases and the right to use such tools.

1.2 Affiliate shall mean any corporation, firm, partnership or other legal entity that, directly or indirectly, controls, is controlled by, or is under common control with MMI but shall not include any such corporation, firm, partnership or other legal entity that provides genomic products and services substantially similar to Celera. A corporation or other entity shall be regarded as in control of another corporation or entity, if (a) in the case of corporate entities it owns or directly or indirectly controls more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other corporation or entity, or if it possesses, directly or indirectly, the power to manage, direct or cause the direction of the management and policies of the corporation or other entity or the power to elect or appoint

entities, direct or indirect ownership of at least fifty percent (50%) interest with the power to direct the management and policies of such non-corporate entities.

1.3 Agreement Products and Technology shall mean the BPP Products and Technology and BPP SNP Map and Technology.

1.4 Agricultural Product(s) and Service(s) shall mean any Product or service to improve livestock and aquaculture production. When the context is appropriate, reference may also be made solely to Agricultural Products(s) or to Agricultural Services(s).

1.5 Association Study shall mean a series of experiments employing genotyping and bioinformatics to the association of known SNPs with certain phenotypes expressed in DNA samples.

1.6 Authorized Use shall have the meaning set forth in Section 2.6.

1.7 Bovine Product shall mean the database product set forth in items la. and 2 of Schedule 1.9.

1.8 Bovine Royalty Payment shall have the meaning set forth in Section 6.1(b).

1.9 BPP Products and Technology shall mean the Bovine Product, Porcine Product and Poultry Product, together with the Tools described in Schedule 1.9, and any Celera documentation for such products.

1.10 BPP Subscription shall mean MMIs subscription to the BPP Products and Technology.

1.11 BPP SNP Map and Technology shall mean the SNP Maps and Tools listed and described in Schedule 1.9, and any documentation for such products.

1.12 BPP SNP Map Subscription shall mean MMIs subscription to the BPP SNP Map and Technology.

1.13 Celera Technology shall mean (a) all data, information, inventions, know-how, technology, trade secrets and the like, including, but not limited to, nucleotide sequences, whether as genomic DNA, cDNA, synthetic DNA, RNA or the like, ribozymes containing any of the foregoing, vectors containing any of the foregoing, gene therapy delivery systems or control systems containing any of the foregoing, host cells containing any of the foregoing, amino acid sequences encoded by any of the foregoing, antibodies, and processes and uses of any of the foregoing (and any related information, including, but not limited to allele frequency, haplotypes and processes and uses of any of the foregoing), whether patentable or not, and (b) that are conceived of, developed, discovered, identified or invented in whole or in part by Celera independent of MMI.

1.14 Confidential Information shall mean (a) the terms of this Agreement, and (b) all non-public business information, trade secrets and technical information

relating to Celera Technology, MMI Technology or other information, including, but not limited to all data, information, inventions, know-how, technology, trade secrets and the like belonging to the Disclosing Party, including, where appropriate and without limitation, any associated information, business, financial and scientific data, DNA Sequence Information, invention disclosures, patent disclosures, patent applications (and related files and strategies), structures, models, techniques, processes, compositions, compounds, biological samples, and the like, and bioinformatics methods, hardware configurations and software in various stages of development or any software product (source code, object code or otherwise), including its audiovisual components (menus, screens, structure and organization) and any human or machine readable form of the program, and any writing or medium in which the program or information therein is stored, written or described, including, without limitation, diagrams, flow charts, designs, drawings, specifications, models, data, bug reports, and the like.

1.15 Confidentiality Agreement shall mean the Confidentiality and Nondisclosures Agreement between MMI and Celera, effective November 20, 2000.

1.16 Default shall mean a Performance Default and/or Representation Default

1.17 Disclosing Party shall have the meaning set forth in Section 7.1(a).

1.18 DNA Sequence Information shall mean the respective consensus, non-redundant bovine, porcine, and poultry nucleotide sequences from nucleotide templates sequenced through Celeras internal sequencing programs and released to MMI.

1.19 Economic Consideration shall mean revenue derived from any MMI agreement for the development, marketing, sale or distribution of Agricultural Product to Third Parties including without limitation, research and development payments, payments in the form of equity in a Third Party, payments for equity in MMI (to the extent such payments exceed the value of such MMI equity), license fees, maintenance fees, milestones, and royalties.

1.20 Effective Date shall have the meaning set forth in the first paragraph of this Agreement.

1.21 Existing Senior Securities shall have the meaning set forth in the Certificate of Designations of the Series E Convertible Preferred Stock of MMI.

1.22 Foundation Customer shall have the meaning set forth in Section 2.5(b).

1.23 Indemnitee shall mean the Party that intends to claim indemnification under Article 12 of this Agreement.

1.24 ^"Indemnitor shall mean the Party from which the Indemnitee seeks indemnification.

1.25 MMI Contractor(s) shall mean any Third Party with whom MMI has contracted to pursue and/or complete, solely on MMIs behalf, MMIs research and/or development activities. MMI Contractor(s) shall be subject to an agreement with MMI for the confidential treatment of information exchanged in substantial conformity to the confidentiality provisions of this Agreement, and shall not retain any right, title and/or interest in or to any property rights resulting from such MMI research and/or development activities and all such rights shall reside solely in MMI.

1.26 MMI Site shall mean one of MMIs facilities or places of business that MMI identifies to Celera and Celera authorizes to receive information that MMI accesses from Celera hereunder.

1.27 MMI Technology shall mean all data, information, inventions, know-how, technology, trade secrets and the like including, but not limited to, nucleotide sequences, whether as genomic DNA, cDNA, synthetic DNA, RNA or the like, ribozymes containing any of the foregoing, vectors containing any of the foregoing, gene therapy delivery systems or control systems containing any of the foregoing, host cells containing any of the foregoing, amino acid sequences encoded by any of the foregoing, antibodies, and processes and uses of any of the foregoing, whether patentable or not, that are conceived of, developed, discovered, identified or invented, during or after the Term, in whole or in part, by MMI as a direct result of MMIs Authorized Use of the Agreement Products and Technology and independent of Celera.

1.28 Party shall mean either Celera or MMI; Parties shall mean both Celera and MMI.

1.29 Performance Default shall mean a breach or default of a material obligation of this Agreement.

1.30 Poultry Product shall mean the database product set forth in items lc. and 2 of Schedule 1.9.

1.31 Porcine Product shall mean the database product set forth in items lb. and 2 of Schedule 1.9.

1.32 Product(s)^" shall mean any (a) article or substance consisting of, derived from, or designed to interact with DNA Sequence Information or (b) and technology, method, know how or service derived from DNA Sequence Information.

1.33 Receiving Party shall have the meaning set forth in Section 7.1(a).

1.34 Records shall mean MMIs documentation of its access to and use of the DNA Sequence Information.

1.35 Regulatory Approval shall mean, with respect to the US, European Union or Japan, the first approval or clearance by any national, supra-national, regional, state or local regulatory agency, department, bureau, commission, council or other

governmental entity, permitting the lawful manufacture, distribution, use, import, export or sale of a Product in such country or geographic region.

1.36 Representation Default shall mean the untruth of any material representation or warranty given hereunder by a Party.

1.37 Series E Convertible Preferred Stock means MMIs Series E Convertible Preferred Stock.

1.38 Series E Preferred Stock Purchase Agreement shall mean the agreement of such title between the Parties.

1.39 Third Party shall mean any individual, partnership, joint venture, corporation, trust, estate, unincorporated organization, government or any department or agency thereof, or other entity other than MMI or Celera.

1.40 Tools shall mean the algorithms and software as set forth on Schedule 1.9.

Article 2

LICENSE AND OPTION

2.1 License to BPP Products and Technology. Subject to the terms and conditions of this Agreement, Celera hereby grants to MMI, a non-exclusive, perpetual, worldwide license (with no right to sublicense), to access and use the BPP Products and Technology solely within the Authorized Use.

2.2 License to BPP SNP Map and Technology. Subject to the terms and conditions of this Agreement, Celera hereby grants to MMI, a non-exclusive, perpetual, worldwide license (with no right to sublicense), to access and use the BPP SNP Map and Technology solely within the Authorized Use.

2.3 Option for Exclusivity. Celera hereby grants MMI an exclusive option to convert the non-exclusive license granted pursuant to Section 2.1 into an exclusive, perpetual license, and convert the non-exclusive license granted pursuant to Section 2.2 into an exclusive, perpetual license (together, the Option); provided however, that any and all rights to use the Tools set forth in the Schedule 1.9 shall remain non-exclusive for all purposes; and provided further that MMI meets each of the following conditions during the Option Period (defined below):

(a) MMI pays Celera two million dollars ($2,000,000) pursuant to Section 4.1(b); and

(b) After the Effective Date, either

(i) MMI raises gross cash proceeds of at least fifteen million dollars ($15,000,000) through one or more equity financings from research and development payments, and/or by other means; or

(ii) On a product-by-product basis, MMI enrolls two (2) Foundation Customers pursuant to Section 2.5(b); provided however, if MMI has satisfied the condition set forth in Section 2.3(a), and MMI enrolls a Foundation Customer for one (1) but not two (2) of the species for the databases that comprise the BPP Products and Technology (the Bovine Product, Porcine Product and Poultry Product), then MMIs exclusivity granted pursuant to satisfying this subsection 2.3(c)(ii) shall be limited to the product for which such single Foundation Customer is enrolled.

For clarification, the achievement of exclusivity provided in this Section 2.3 in no way excuses MMIs obligation to make the payment pursuant to Section 4.1(b). Furthermore, if MMI makes the payment pursuant to Section 4.1(b) and enrolls two (2) Foundation Customers, then, subject to Section 2.5(b), the non-exclusive license granted pursuant to Section 2.1 shall be exclusive for all three (3) species.

2.4 Exercise of the Option. Subject to the conditions specified in Section 2.3, MMI may exercise the Option at any time during the period beginning on the Effective Date and ending six (6) months thereafter (the Option Period) by giving Celera written notice together with reasonable written documentary proof of MMIs fulfillment of the conditions specified in Section 2.3. During the Option Period, Celera will not grant a license or an option to take a license to the BPP Products and Technology or BPP SNP Map and Technology to any Third Party within the Authorized Use. Notwithstanding anything to the contrary herein, MMIs failure to satisfy the conditions to the Option specified in Section 2.3, or MMIs failure to exercise the Option for any other reason, shall not affect in any manner, any of MMIs obligations specified herein, including without limitation, the obligations cross referenced in Section 2.3.

2.5 Scope and Conditions of Exclusivity. The exclusivity granted pursuant to the Option may terminate as provided in this Section 2.5. Notwithstanding MMIs exercise of the Option, the exclusive licenses granted pursuant to the Option will become nonexclusive on the earlier to occur of the following without notice if prior to a date which is thirty (30) months after the Effective Date, one (1) of the following conditions has not been met:

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